Friday, July 3, 2009


I just so happens that some issues continue to arise. Within days of the Melendez-Diaz decision, the Supreme Court accepted cert in the case of Briscoe, et al v. Virginia. The issue as framed by Briscoe in his petition for cert is "when a prosecutor has introduced a certificate (can we say an affidavit?) of results for a forensic laboratory analysis without calling the analyst, does the state avoid confrontation clause problems by providing that the accused has a right to call the analyst as his own witness? Does this sound vaguely familiar? Didn't Scalia directly address this issue in Melendez-Diaz? Some see this is an effort by the dissent in Melendez-Diaz to modify the decision with the help of a new judge (Sotomayer) replacing one of the judges (Souter) who voted with the majority. Let's see what happens. Briscoe is represented by Jeff Fisher's wingman on 6th Amendment confrontation issues, Professor Richard Friedman from the University of Michigan Law School and author of The Confrontation Blog.

Facebook again.....A private investigator called me with some follow up questions on the propriety of accessing and using facebook information in an investigation on behalf of a lawyer involved in a civil case. Two issues immediately came to the forefront. The case was a civil case and did not involve the constitutional requirement of effective assistance of counsel. Second and more importantly was the fact that the witness was a party to the lawsuit represented by counsel. SCR 20:4.2 clearly prohibits contacting the party without the consent of their lawyer. Would it make any difference if the investigator merely views the facebook page and does not take the step of asking the witness/party to be a friend?

Finally, a recent Wisconsin court of appeals case, State v. James D. Miller, 2007 AP 1052-CR, revisits an old question that has been near and dear to my heart since I tried the case of State v. Shillcutt back in the 80s. During post trial proceedings I unsuccessfully attempted to secure a new trial for Mr. Shillcutt based on information from a juror that another juror had made racial comments during jury deliberations. In Miller's case, a juror had informed the defense that he had changed his vote to guilty because he had wanted to leave on a fishing trip with friends. Like Shillcutt, Miller was unsuccessful. Sec. 906.06, Stats. is a bear.

No comments:

Post a Comment